The Criminal Justice Process
With regard to criminal prosecutions, the process begins with my office receiving a police report (either a full police report, or a preliminary “probable cause” affidavit). We are not an investigative agency, so each case is only based on information brought to us by law enforcement. After the police report is received, it is entered as an intake and delivered to myself or the Deputy D.A. to screen. In our review of the report we are determining what crimes are applicable, and whether there is enough admissible evidence to prove each element of each crime beyond a reasonable doubt at a jury trial. The standard to make an arrest is “probable cause” – that is, whether it is “more likely than not” that the subject committed the crime(s). However, the screening decision is based on a higher standard – whether the case can be proven beyond a reasonable doubt.
In screening the case, we are looking for any potential Constitutional or statutory violations. Our screening decision is based on the admissible evidence. For example, if some of the evidence was gathered illegally, that evidence would not be considered in our decision on whether each of the elements of each of the potential crimes could be proven beyond a reasonable doubt at trial (i.e., the illegally gathered evidence would be excised from our analysis of whether each of the elements of each of the crimes could be proven beyond a reasonable doubt). This approach saves resources, and furthermore it ensures that offenders who forego the services of a defense attorney receive the same treatment as offenders who are represented by a defense attorney.
If there are charges that meet that standard (i.e., there is sufficient admissible evidence to prove each element of each crime beyond a reasonable doubt at trial), we will then file those charges that meet that standard (if there are only misdemeanors involved), or present the case to a Grand Jury (if there are felonies involved). The Grand Jury will then also make a screening decision and determine whether the case should go forward and the charges should be filed.
Once a case is filed, an arraignment hearing is set, at which time the offender will be advised by the Court (i.e., the judge) of the charges that have been filed against him/her. At the arraignment the date of the plea hearing will be set. In between the arraignment and the plea hearing, the District Attorney’s office will put together a plea offer for the offender. At the plea hearing the offender will plead either “guilty” or “not guilty.” If the offender pleads “guilty,” he/she might be sentenced that day by the Court, or the sentencing hearing could be set for a later time.
With regard to the plea offer, we will put together an offer pursuant to the applicable laws and guidelines. We have two sets of guidelines. The first set is for felonies, and it is dictated by Oregon laws and rules. The second set is our office guidelines for misdemeanors, and it is guided in part by the statutory felony guidelines. Please see our “policies & documents” page for these documents and a further explanation of these guidelines.
When we put together a plea offer, we have to balance between holding an offender accountable, recognizing the fact that they are taking responsibility for their actions (if they plead guilty), and our goal of deterrence. The purpose of our sentencing recommendations is to prevent future harm (by addressing substance abuse issues, and/or acting as a deterrent, and/or incarcerating the offender to prevent future harm to the public for a specific period of time). The purpose of our sentencing recommendations is not to exact revenge. Similarly, the purpose of our sentencing recommendations is not solely to subject the defendant to his/her “just desserts.” Although the offender should not be punished beyond what is fair and what he/she deserves, the criminal justice philosophy of “just desserts” should act as a ceiling for the punishment, rather than the floor. The purpose of the District Attorney’s office recommended “punishment” is not for the sake of punishment itself, but rather to prevent future harm.
In addition to the sentencing guidelines and our goal of preventing future harm, there are also other considerations that we must take into account in crafting a plea offer. One of these additional considerations is that the offer should be for something less than the sentence we would expect the defendant to receive from the Court after being convicted at trial. The offender should receive some benefit for taking responsibility for his/her actions. Furthermore, there must be some incentive for the offender to take the plea offer. If there is no benefit to the offender in taking the offer, then the offender would just plead “not guilty” and go to trial. Given the D.A. office’s limited resources, we cannot go to trial on every criminal case. The vast majority of criminal cases are handled through plea negotiations, which is necessary for the system to function properly. If our plea offers were to contain sentences that were practically the same as what the offender would receive after a trial (or if they were stricter than what the offender would receive after a trial), more cases would be set for trial, and due to our resources we would then only be able to prosecute certain high-level crimes and not be able to prosecute others.
Another consideration to be taken into account by us when determining how to proceed on a case (and in putting together the plea offer) is the wishes, feelings, and position(s) of the victim(s) of the offender’s crimes. Our Victims’ Services Director is RaNae Palmer, and her role is to help and inform the victims, as well as coordinate services for the victims. For more information, please see our “Victims’ Services” page. In addition, victims should also feel free to contact me directly with any thoughts, questions, or concerns.
For felonies, the sentence that the defendant would likely receive after being convicted at a trial is primarily determined by the statutory Oregon Felony Sentencing Guidelines. In addition, in an indirect manner, the Oregon Felony Sentencing Guidelines also strongly influence the likely sentence an offender would receive for a misdemeanor crime. This is because the sentence for a misdemeanor should be proportional to the sentence for a felony, because felonies are considered more serious crimes than misdemeanors. For example, all other things being equal (e.g., same criminal history), the sentence for a Theft in the Second Degree (a misdemeanor crime) should be less than the sentence for a Theft in the First Degree (a felony crime).
The Court (i.e., the judge) determines what the offender’s actual sentence will be, and the sentence will be announced at the sentencing hearing (which could occur the same day as the plea hearing, if the defendant pleads guilty). The District Attorney or Deputy District Attorney will make a recommendation to the Court, but the Court is not bound to follow those recommendations. It is ultimately up to the Court to decide and determine the offender’s sentence.
Please see our “policies & documents” page for our sentencing guidelines (misdemeanor and felony), as well as for more information on my criminal justice philosophy.
I welcome any questions, comments, suggestions, or critiques!
Joseph W. Lucas, Ph.D.
County of Harney, State of Oregon